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Need to Know: August 2021

Employment - Office desk by window

In this latest edition of our ‘Need To Know’ employment and HR newsletter, we look at the Government’s commitments following the #MeToo movement, the risks to employers of withholding payments which were deferred during the pandemic, Labour’s announcement of its plan to give all workers full employment rights from day one of employment, and much more.

We also have included our usual HR Bullets – which cover other significant employment law updates from the past month.

Below are some of our key articles:

HR Bullets

  • An Employment Tribunal has found that an actress suffered unlawful pregnancy discrimination when she was dismissed from her BBC show and replaced by another actress after falling pregnant (Kinley v Bronte Film & Television Limited).
  • An employee who refused to return to work during the Covid-19 epidemic to protect his vulnerable father was unfairly dismissed (Gibson v Lothian Leisure).
  • The Supreme Court has confirmed that claimants bear the initial burden of proof in employment discrimination claims (Royal Mail Group Ltd v Efobi).
  • Constructive dismissal is capable of constituting an act of unlawful harassment under the Equality Act 2010 s.26. This is a departure from the earlier decision in Timothy James Consulting Ltd v Wilton [2015] ICR 764 where the opposite conclusion was reached. The EAT in Wilton had not considered the relevant EU law and therefore its  decision should not be followed (Driscoll (née Cobbing) v V & P Global Ltd).
  • The EAT has held that it is necessary to distinguish between the terms of an absence management policy and its application. Where an absence management policy contains a discretion, the application of said policy can create a substantial disadvantage to a disabled employee and employers should take steps to alleviate the disadvantage (Martin v Swansea).
  • It was not unfair to dismiss a teacher who had been suspected (but not charged by the police) of possessing indecent images of children, where the dismissal was based on some other substantial reason and not conduct and the employer had acted reasonably in treating the suspicion as a sufficient reason to dismiss the employee  (L v K).
  • Where an employer has any form of discretion in a commission arrangement, an employee has the right for that discretion to be exercised rationally and in good faith (Sharma v Lily Communications).
  • Acas has published advice to assist employers who are considering hybrid working. (Acas – Hybrid Working).

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